While the First Amendment does not apply to Twitter censorship, California law arguably does. And the California Constitution contains broader protections for free speech than the First Amendment. Unlike the First Amendment, which couches the right to free speech as a limit on congressional power, the California Constitution gives “every person” an affirmative right to “freely speak, write and publish his or her sentiments on all subjects.” In a 1979 case called Robins v. Pruneyard Shopping Center, the California Supreme Court held that this broad language means that privately-owned public forums can’t censor speech. While the Pruneyard case involved a shopping center, the California Supreme Court has held that the decision applies to any entity that is the “functional equivalent of a public forum.” There is no better modern example of a privately-owned public forum than Twitter. Indeed, unlike shopping centers, which exist mainly to facilitate the purchase of consumer goods, Twitter’s entire purpose is to serve as an open forum for speech and debate.

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As an attorney, I represent one such user who was recently banned by Twitter for viewpoints and supposed off-platform affiliations. The user—Jared Taylor—has highly controversial views on many issues, especially race. However, freedom of thought means “freedom for the thought that we hate.” Even Taylor’s critics concede that he has always shared his views respectfully, without harassing or threatening anyone. He has encouraged his followers to similarly refrain from harassment, threats or disrespectful behavior.

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Our lawsuit is not about whether Taylor is right or wrong. It’s about whether Twitter and other technology companies have the right to ban individuals from using their services based on their perceived viewpoints and affiliations. If Twitter wins this battle, there is nothing stopping tech behemoths from searching through users’ social media posts or emails, or investigating their off-platform speech, and banning people whose views it dislikes.

That is a prospect that should terrify everyone.

Noah Peters is an attorney in Washington, D.C.

[Editor’s Note: To find out more about our lawsuit, or to contribute to our legal fund, click here.]

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